1.By way of present writ petition Mr.
Gurbaksh Singh, the petitioner has challenged and prayed for setting aside of
orders passed by the learned Central Administrative Tribunaldated 21st July, 1997. In the writ petition
the following prayers have been made:-

"(i)Issue
appropriate writ in the nature of certiorari and set -aside the impugned order
of the Central Administrative Tribunal dated 27th May, 2003 by which the R.A.
No. 150/2002 was dismissed and other preceding the said order.

(ii)Pass appropriate
writ in the nature of mandamus and call upon the respondents to produce the
record and thereafter quash the order of removal of the petitioner dated 21st
July, 1997 with all consequential relief.

(iii)Pass any other
order or orders by this Hon'ble Court deem fit and proper."?

2.The petitioner was working as Electric
Fitter Grade-I at Delhi junction.By
order dated 18th July, 1988 he was transferred to Achhnera, Uttar Pradesh.This order of transfer was made subject
matter of challenge before the Central Administrative Tribunal by the
petitioner but was not successful.He
also approached the Supreme Court by way of Special Leave Petition but did not
succeed.

3.Subsequently, vide charge sheet dated 7th
March, 1990 departmental proceedings were initiated against the petitioner for
unauthorised absence from 20th July, 1988 to 27th March, 1990.By order dated 4th September, 1991 after
enquiry, penalty of reversion from Electric Fitter Grade-I to Electric Fitter
Grade-II was imposed.This order of
reversion was accepted by the petitioner and has become final.

4.In spite of the above penalty order, as
per the respondents, the petitioner did not report and join duty and
consequently a second charge sheet dated 2nd December, 1993 was issued on the
ground of unauthorised absence from 8th March, 1990 to 2nd December, 1993.An enquiry was held, but the petitioner did
not participate in the said enquiry.The
disciplinary authority after considering the material on record imposed major
penalty of removal from service by an order dated 21st July, 1991.

5.The petitioner filed an appeal against
order but was not successful.He then
approached the Tribunal by way of OA No. 2535/1998.

6.Learned Tribunal byorder dated 20th October, 2000 dismissed the
said original application.The main
contention argued before the Tribunal by the petitioner was that double
punishment had been imposed in view of the two punishment orders passed by the
disciplinary authority for unauthorised absence.The first order it was submitted resulted in
reversion and the second order resulted in the penalty of removal from
service.The contention of the
petitioner that the first order of punishment of reversion related to unauthorised
absence from 20th July, 1988 to 22nd March, 1991 and the subsequent order removing
him from service related to absence from 7th March, 1990 onwards, was found to
be incorrect.It was held that the first
charge sheet was served on 7th March, 1990 and related to the period of
unauthorised absence upto the said date.The plea of double jeopardy was accordingly rejected by the learned
Tribunal.

7.The Tribunal also considered the other
argument raised by the petitioner that he never refused to accept the transfer
order andinspite of repeated
representations he was not permitted and allowed to join duty.This contention of the petitioner was found
tobe without any substance.It was also found that the contention of the
petitioner that he was not paid substance allowance was without merit.The Tribunal categorically held that the
petitioner right from 1988 -1994 was deliberately not abiding by the transfer
order and his conduct showed that he was not interested in continuing in
service.

8.The petitioner challenged this order of
the Tribunal dated 20th October, 2000 upholding the order of removal from
service by filing Civil Writ No. 3/2002 in this Court.This writ petition was dismissed vide order
dated 26th February, 2002,which reads
as under:-

"Having heard
the learned counsel for the petitioner, we are of the opinion keeping in view
the facts and circumstances of the case and particularly in view of the fact
that the petitioner did not participate in the enquiry, we feel that no case
has been made out for interference with the impugned judgment.Learned counsel for the petitioner then
states that he may be permitted to file an application for review.If it is permissible in law, he may do
so.The writ petition stands
dismissed."?

9.The petitioner thereafter approached the
Tribunal by way of an application under Section 22 of the Administrative
Tribunal's Act, 1985 and Rule 17 of the Central Administrative
Tribunal(Procedure) Rules, 1987.In this
application again the plea of double jeopardy was taken and it was stated that
the second charge sheet related to same period for unauthorised absence for
which penalty of reversion had been earlier imposed.It was also contended in the application that
the learned Tribunal had failed to take into consideration several
representations made by the petitioner and that the petitioner had never
refused to join duty and that these aspects were not understood and considered
while dismissing the original application by order dated 20th October,
2000.This review application was
dismissed by the learned Tribunal on 27th May, 2003 on the ground that no good
ground for review wasmade out.

10.After dismissal of the review application,
the petitioner has nowagain approached
this Court by way of the present writ petition with the prayers thathave been reproduced above.

11.Learned counsel for the petitioner submitted
before us that the second chargesheet dated 2.12.1993 and the enquiry report
referred to unauthorised absence of the petitioner w.e.f. 20.7.1988 to 7.3.1993
for which earlier a separate enquiry was held and the petitioner was punished
by reversion from rank of Electric Fitter Grade-I to Electric Fitter Grade-II.
It was submitted by the learned counsel for the petitioner that the petitioner
was being punished again and thus it was a case of double jeopardy and punishment.
Itwas further submitted that there was
no application of mind by the disciplinary and appellate authorities including
the tribunal. The counsel for the petitioner reliedupon representations and submitted that the
findings of the enquiry officer were perverse. Lastly, it was submitted that
the petitioner had unblemished service record of nearly 29 years of service
from 1958 till 20.7.1988 but as a result of the punishment of removal from
service he was not entitled to any pensionary and retirement benefits. Herelied upon the judgment of the Supreme Court
in the case of Laxmi Shankar Pandey vs. Union of India & Ors. reported in
(1991) 2 SCC 488as well unreported order
passed by this courtinHarish Chander Vs. Union India (CW No.
1730/1999) and another judgment of this court in Constable Dayachandvs. Union of India & Ors. reported in
2000 (1) Administrative Total Judgments 137.

12.The counsel for the respondent on the other
hand submitted that the petitioner deliberately and intentionally remained
absent unauthorisedly and the order passed by the Tribunal was upheld by this
court while dismissing CW No. 3/2002 vide order dated 26.2.2002. The petitioner
cannot therefore question and agitate correctness ofthe order dated 28.10.2000 passed by the
leaned Tribunal once again.

13.We have considered the submissions made by
the parties. The order of the Tribunal dated 20th October, 2000 passed in OA
2535/1998 wasmade the subject matter of
the challenge in writ petition No. 3/2002. The said writ petition was dismissed
vide order dated 26th February, 2002, whichhas been quoted above. Learned Tribunal in its order dated 20th October,
2000 had examined all the contentions of the petitioner including the plea of
double jeopardy but did not find any merit in the said contentions. It was
found that there were two separate enquiries.The first enquiry was for unauthorised absence from 20.7.1988 to
7.3.1990 and that had resulted in penalty of reversion of the petitioner from
the post of Electric Fitter Grade-I to Electric Fitter Grade-II vide order
dated 4.9.1991. The second chargesheet was in respect of unauthorised absence
of the petitioner from 8.3.1990 upto 2.12.1993 and that had resulted in passing
of order of major penalty of removal from service. It may also be noted that
the petitioner had failed to join the duty even as late as 20.7.1997, when the
said penalty order was passed.

14.The petitioner cannot now question and
challenge the order of the Tribunal dated 20th October, 2000 once again. He had
earlier filed Writ Petition No. 3/2002 and that writ petition was
dismissed.It is well settled that the
principles of res judicata apply towrit
petitions under Article 226 of the Constitution of India. It is immaterial
whether any notice was issued to the respondents or whether the writ petition
was dismissed at preliminary hearing itself.Reference in this regard may be made to K Vidyasagar vs. State of U.P.
Reported in (2005) 5 SCC 581, Avinash Nagra vs. Navodaya Vidyalaya Samiti
(1997) 2 SCC 534 and Amalgamated Coal Fields vs. Janapada Sabha AIR 1964 SC
1013. In the case of Gulabchand Chhotala Parikh vs. State of Gujrat AIR 1965 SC
1153 it has been held by theSupreme
Court that the decision given by the High Court on merits would operate as res
judicata.The relevant and operative
portion of the said judgment is reproduced below:

" 1.If a petition under Article 226is considered on the merits as a contested
matter and is dismissed, the decision would continue to bind the parties unless
it is otherwise modified or reversed by appeal or other appropriate proceedings
permissible under the constitution.

2.It would not be
open to a party to ignore the said judgment and move this court under Article
32 by an original petition made on the same facts and for obtaining the same or
similar orders or writs.

3.It the petition under Article 226 in a High
Court is dismissed not on the merits but because of the laches of the party
applying for the writ or because it is held that the party had an alternative
remedy available to it, the dismissal of the writ petition would not constitute
a bar to a subsequent petition under Article 32.

4.Such a dismissal may however constitute a bar
to a subsequent application under Article 32 where and if the facts thus found
by the High Court be themselves relevant even under Article 32.

5.If a writ petition is dismissed in limine and
an order is pronounced in the behalf, whether or not the dismissal would
constitute a bar would depend on the nature of the order. If the order is on
the merits, it would be a bar.

6.Ifthe
petition is dismissed in liminewithout
a speaking order,such dismissal cannot
be treated as creating a bar of res judicata.

7.If the petition is dismissed as withdrawn, it
cannot be a bar to a subsequent petition under Article32 because, in such a
case, there had been no decision on the merits by the court."?

15.It is also well settled that the principle
of res judicata is not a rule of mere technicality but based on the principle
that seeks to bring to an end to litigation by giving finality to a judgment
interse parties and it also save a litigant from harassment for a second time.
In the case of Avinash Nagra (supra) it was held that if a writ petition
waswithdrawn without liberty to file a
second writ petition, the second writ petition was not maintainable. Reference
in this regard may also be made toSarguja Transport Service vs. S.T.R.C. (1987) 1 SCC 5 where it was held
that on the ground of public policy the principle underlining Order XXIII Rule
1 of the Code of Civil Procedure, 1908, would be applicable to writpetitions under Article 226 of the
Constitution of India, subject to certain limitations. Situation may be
different where a writ petition is withdrawn to pursue a more efficacious
alternative remedy. In such cases there is no adjudication on merits.The principles as embodied in Order XXIII
Rule 1 of the Code of Civil Procedure, 1908 may nottherefore strictlybe applicable in such cases (See Haryana
State Cooperative Land Development Bank vs. Neelam (2005) 5 SCC 91).

16.A bare perusal of the order dated 26.2.2002
shows that while dismissing the writ petition No. 3/2002, the courthad examined and considered the order passed
by the Tribunal dated 20th October, 2000 on merits but did not find any reason
to interfere with the impugned order. It is not a case in which the parties
were relegatedto approach an
alternative forum. The last part of the order dated 26.2.2002 merely records
the submission of the counsel that the petitioner wanted to file a review
application. This court merely recorded that if a review application was
permissible in law, the same may be filed. It is also well settled that power
of this court under Article 226 of the Constitution of India and power of
review with the Tribunal are different and separate. The two powers are
distinct. The Tribunal after deciding and adjudicating a review application
cannot re-examine or recall its earlier order in entirety but has limited power
of review as specified in Section 22(iiif) of the Administrative Tribunal Act,
1985 (See in this regard Gupabandhu Bidwar vs. Krishan Chandra Mohanty (1998)4
SCC 447).Power of review granted to a Tribunal is similar to the powers of a
civil court under Order 47 of the Code of Civil Procedure, 1908.In the case of Ajit Kumar Rath vs. State of
Orissa (1997) SCC 473 was held as under:

" The provisions extracted above
indicate that the power of review available to the Tribunal is the same as has
been given to a court under Section 114read with Order 47 CPC. The power is not absolute and is hedged in by
the restrictions indicated in Order 47. The power can be exercised on the
application of a person on the discovery of new and important matter or
evidence which, after the exercise of due diligence, wasnot within hisknowledge or could not be produced by him at
the time when the order wasmade. The
power can also be exercised on account of some mistake or error apparent on the
face of the record or for any other sufficient reason. A review cannot be
claimed or asked for merely for a fresh hearing or arguments or correction of
an erroneous view taken earlier. That is to say, the power of review can be
exercised only for correction of a patent error of law or fact which stares in
the face without any elaborate argument being needed for establishing it. It
may be pointed out that the expression "any other sufficient reason"?
used in Order 47 Rule 1 means a reason sufficiently analogous to those
specified in the rule.

31.Any others attempt, exceptan attempt to correct an apparent error or an
attempt not based on any ground set out in Order 47, would amount to an abuse
of the liberty given to the Tribunal under the Act to review its
judgment"?.

17.In view of the above legal position, no
fault can be found in the order ofthe
Tribunal dated 27th May, 2003 dismissing the review application filed by the
petitioner.

18.It appears that the petitioner had
unblemished service record till 1988, when he unauthorised absented himself
from duty. He had worked for more than 29 years. Learned counselfor the petitioner had drawn our attention to
the order dated 27th September, 2002 in which reference has been made to Rule
65 of the Railway Service Pension Rules, 1993 for grant of compassionate
allowance. We are not expressing any opinion on this respect as this question
was not considered and was not subject matter of the petition before the
Tribunal or this writ petition.It will
be open to the petitioner to make representation under Rule 65 of the aforesaid
rules. It goes without saying that if any representation is made by the
petitioner,the respondents will decide
the same in accordance with law.

19.In view of the above, we do not find any
merit in the writ petition and the same is dismissed. There will be no order as
to costs.